Justice Lee Elected Chief Justice

Justice Sharon Lee will become Chief Justice of the Tennessee Supreme Court on Sept. 1. She has been a member of the Tennessee Supreme Court since 2008, and recently won a retention election for an eight-year term to the court. “It’s an honor to serve the Court, the Tennessee judiciary, and the people of Tennessee in this role,” Justice Lee said. “I am grateful to the citizens of Tennessee for electing me to the Supreme Court and appreciate the confidence the members of the Court have shown by electing me as Chief Justice. I will continue to work to ensure that courts in Tennessee are fair and impartial.”

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.

TN Court of Appeals

JANINE ALEXANDER-BILYEU v. THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, ET AL.

Former teacher filed suit against the Metropolitan Nashville Public Schools alleging retaliatory discharge in violation of the Tennessee Public Protection Act and retaliation under the Tennessee Human Rights Act. The trial court granted defendants’ motion to dismiss when the teacher failed to file a response or appear at the hearing on the motion. Teacher’s motion for relief from judgement pursuant to Tenn. R. Civ. P. 60.02 was denied, as was a motion to quash a garnishment issued to collect a judgment for fees assessed against her; she appeals the denial of the Rule 60.02 motion and the motion to quash. Teacher also contends that the court denied her the opportunity to present evidence at the hearing on her motion, that the court should have recused itself, and that counsel should have been appointed to assist her. We reverse the denial of the motion to quash a garnishment; in all other respects we affirm the decision of the trial court.

Plaintiffs brought this action against Rutherford County when the county prohibited them from building a home on undeveloped property because the property was below the Base Flood Elevation requirements established by the county. Plaintiffs contend the county had an affirmative duty under Article XIX, Section 19, of the Rutherford County Zoning Resolution to notify them, prior to their purchase of the property, that the property was below the Base Flood Elevation requirements, and the county breached that duty. In response to the complaint, the county filed a motion to dismiss for failure to state a claim based on the immunity provisions under the Tennessee Governmental Tort Liability Act, specifically Tennessee Code Annotated § 29-20-205(1), (3)-(4). The trial court granted the county’s motion to dismiss for failure to state a claim based on governmental immunity. Having determined that the county’s alleged acts or omissions were discretionary, not operational, the county has immunity; thus, we affirm the dismissal of this action.

This post-divorce matter presents the primary issue of whether the trial court properly calculated, for child support purposes, the obligor parent’s income from self-employment. The trial court held that mortgage payments made by the obligor’s business with respect to a commercial building solely owned by the obligor should not be added to the obligor’s other income for the purpose of calculating child support. The obligee parent appeals that ruling to this Court. We affirm on that issue, concluding that such payments were already included in the obligor parent’s income calculation. We reverse the trial court’s finding concerning the obligor’s income, however, due to insufficient evidence regarding the nature of the depreciation deduction taken with respect to the commercial building. We remand for further proof regarding the depreciation deduction. The obligee parent also appeals the trial court’s failure to award attorney’s fees. Having concluded that the trial court must reconsider its determination of the obligor’s income, we also remand for the trial court to determine whether an award of attorney’s fees to the obligee parent is appropriate. We conclude that this is not an appropriate case for an award of attorney’s fees on appeal.

This appeal concerns a garnishment. Newgate Recovery, LLC (“Newgate”) brought a garnishment action in the Chancery Court for McMinn County (“the Trial Court”) against Manreet Singh (“Singh”) through Singh’s former employer R & R Group, Inc., d/b/a The Deerfield Inn (“Garnishee”). After Garnishee failed to respond to the garnishment, the Trial Court entered judgment against Garnishee in the amount of $1,283,066. Garnishee moved for relief from the judgment on the basis of insufficient service. The Trial Court granted Garnishee’s Tenn. R. Civ. P. 60.02 motion and set aside the final judgment on the basis of excusable negligence and ineffective service of process. Newgate appeals, arguing, among other things, that Garnishee waived the issue of service of process and that Garnishee’s employees had colluded to avoid a valid judgment. We find and hold that the Trial Court did not abuse its discretion in granting Garnishee’s motion for relief from judgment. We, therefore, affirm the Trial Court.

TN Court of Criminal Appeals

MARCUS BOALES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Marcus Boales, Forrest City, Arkansas, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; James G. Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The federally-incarcerated Petitioner, Marcus Boales, filed a petition for writ of habeas corpus in the Henderson County Circuit Court, seeking relief from his two 1996 drug convictions that were used to enhance his federal sentence. The habeas corpus court summarily dismissed the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Rachel Russell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant stands convicted of possession with intent to sell 0.5 grams or more of cocaine in a drug-free school zone, a Class A felony, and possession with intent to sell 0.5 ounce or more of marijuana in a drug-free school zone, a Class D felony. The trial court sentenced appellant as a Range III, persistent offender to sixty years for his cocaine conviction and twelve years for his marijuana conviction, to be served concurrently. On appeal, appellant argues that the evidence at trial was insufficient to support his convictions. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James G. Woodall, District Attorney General; and Matthew Floyd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Kevin Cortez Chrystak, appeals from the Madison County Circuit Court’s order affirming his conviction for violation of the implied consent statute. See Tenn. Code Ann. § 55-10-406. In the trial court, the Defendant raised a statutory interpretation argument concerning the mandatory blood draw provision of the implied consent law. On appeal, the Defendant argues that the mandatory provision is unconstitutional, violating his Fourth Amendment Rights, and that he did not violate the implied consent law when he presented for the mandatory blood draw. The Defendant has waived his constitutional argument on appeal. However, pursuant to principles of statutory construction, we agree with the Defendant that he did not violate the implied consent law when his blood was obtained via the mandatory provisions. Following our review, we reverse the order of the trial court upholding the implied consent violation and dismiss the charge.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; and Randall Eugene Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, James Glenn Collins, Jr., appeals as of right from the Knox County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred by dismissing his petition for having been untimely filed. Discerning no error, we affirm the judgment of the post-conviction court.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Rolf G.S. Hazlehurst, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Quincey Bernard Dotson, was convicted by a Madison County Criminal Court jury of aggravated assault, a Class C felony, and sentenced to a term of ten years as a Range II offender in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the evidence and the trial court’s failure to apply any mitigating factors in determining his sentence. After review, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; and Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Charles Orlando Fields, appeals the denial of his motion to reopen his post-conviction petition. Because he failed to comply with the statutory requirements for seeking review of a dismissal of a motion to reopen a post-conviction petition, we dismiss the appeal.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Milburn L. Edwards, appeals the Shelby County Criminal Court’s summary dismissal of his second pro se petition for post-conviction relief. After reviewing the record in this case, we conclude that the summary dismissal of the petition was proper and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, we affirm the judgment of the post-conviction court.

The Defendant-Appellant, Phillip Harris, was indicted by a Shelby County Criminal Court Grand Jury for six counts of attempted second degree murder and one count of unlawful employment of a firearm during the attempt to commit a dangerous felony. Following a jury trial, Harris was convicted of one count of attempted second degree murder (count two), five counts of misdemeanor reckless endangerment (counts one, three, four, five, and six), and one count of unlawful employment of a firearm during the attempt to commit a dangerous felony (count seven). The trial court sentenced Harris to twelve years for the attempted second degree murder conviction and to a mandatory consecutive sentence of six years for the unlawful employment of a firearm during the attempt to commit a dangerous felony. The court also imposed sentences of eleven months and twenty-nine days for each of the reckless endangerment convictions and ordered these sentences served concurrently with the sentence for attempted second degree murder. On appeal, Harris argues: (1) the evidence is insufficient to sustain his convictions, and (2) his sentence is excessive. Upon review, we affirm the convictions and remand for resentencing as to the conviction for attempted second degree murder.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Christopher A. Howard, was convicted of attempted possession of .5 grams or more of cocaine with the intent to sell and aggravated robbery, for which he was sentenced to six years and twelve years, respectively, to be served concurrently. On appeal, he argues that there was insufficient accomplice testimony corroboration to sustain a conviction on either charge. Following our review, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Rodriquez Jones, was convicted of aggravated sexual battery and sentenced to ten years in the Tennessee Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction and that the assistant district attorney general committed prosecutorial misconduct during closing arguments. Following our review, we affirm the judgment of the trial court; however, we must remand this matter to the trial court to correct the judgment form.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: PAGE

Appellant pleaded guilty to failure to appear and unlawful possession of a controlled substance with intent to sell or deliver. Appellant later filed a Motion to Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed. On appeal, appellant argues that the trial court erred by summarily dismissing his motion without appointing counsel after he had stated a colorable claim for relief. The State concedes that this case should be remanded to the trial court because appellant stated a colorable claim for relief pursuant to Rule 36.1. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Amy P. Weirich, District Attorney General; and J. Ross Dyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Joe Ross, appeals the Shelby County Criminal Court’s denial of his petition for writ of habeas corpus. The Petitioner entered guilty pleas to five counts of aggravated robbery, four counts of especially aggravated kidnapping, and one count of aggravated rape, for which he received an effective sentence of 25 years confinement. On appeal, the Petitioner argues that his sentence is illegal on the face of the judgment because it does not include mandatory supervision for life. Because the Petitioner’s judgment does not reflect the statutory requirement of mandatory lifetime community supervision, we conclude that the judgment for aggravated rape is illegal and void. We vacate the Petitioner’s sentence for aggravated rape and remand to the habeas court for an evidentiary hearing to determine whether the illegal sentence was a bargained-for element of the Petitioner’s plea agreement.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury found the Defendant, Michael Smith, guilty of aggravated assault and evading arrest. The trial court sentenced the Defendant to ten years for the aggravated assault conviction and eleven months and twenty-nine days for the evading arrest conviction. The trial court ordered the sentences to run consecutively. The Defendant asserts that: (1) the trial court committed plain error by failing to compel an election in count one; (2) the indictment for aggravated assault fails to state an offense; (3) the trial court improperly allowed the victim to testify about the Defendant’s prior bad acts; (4) the trial court improperly denied the Defendant’s request for a mistrial after the State explored the Defendant’s conviction and defense in an unrelated case; (5) the trial court committed plain error when it failed to compel the State to provide the trial court an audio recording of the victim’s statement; (6) the trial court improperly instructed the jury on flight; (7) the trial court improperly ruled that the Defendant’s prior convictions could be used for impeachment purposes should he testify at trial; (8) the evidence is insufficient to sustain his conviction for evading arrest; (9) the trial court abused its discretion when it denied the Defendant’s request to sit at counsel table; and (10) his sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Today's News

Legal News

Immigration Court Cases Start this Week

Court cases for illegal immigrant children trying to become U.S. citizens started this week, WREG reports. An immigration lawyer told WREG there was a preliminary hearing yesterday where families learned how the process works and what to expect in the future. The Memphis court reportedly has 7,000 active cases on its docket, an overwhelming number for the two judges. Attorney Barry Frager said some of the originally scheduled court dates are likely to be delayed so the border children cases sent to Memphis can be heard first. He also expects two more judges to come on board by the end of the year.

TBA Accepting Nominations for Public Service Awards

The TBA each year recognizes lawyers and law students who have shown exceptional commitment to increasing access to justice to individuals and communities. The awards recognize pro bono service in three categories: work performed by an attorney employed by an organization primarily involved in providing legal representation to the indigent, work performed by a private attorney and work performed by a law student volunteer. Nominations should be submitted via the TBA website or to Liz Todaro no later than Sept. 5. Submissions should include a narrative of the individual’s accomplishments, the nominator’s reasons for selecting the individual and a description of how the nominee meets the award criteria. Awards are presented at the Annual Public Service Awards Luncheon in January.

Sentencing Changes Sought for Business Crimes

Defense lawyers and prisoner advocates are pushing for eased penalties for white-collar criminals from the federal panel that sets sentencing policy, the Memphis Daily News reports from the Associated Press. Defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person. The commission, which meets today to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. The Justice Department, though not advocating wholesale changes, has said it welcomes a review.

Tennessee Sets 11th Execution Date

The Tennessee Supreme Court on Tuesday set an execution date for a man convicted in the 1991 burning death of his ex-girlfriend. Lee Hall, formerly known as Leroy Hall Jr., is scheduled to die Jan. 12, 2016. He becomes at least the 11th death row inmate currently scheduled to die in Tennessee. The Tennessean has the story.

Misconduct Case Dropped Against Former Knox Trustee

The official misconduct case against former Knox County Trustee John Duncan III was dismissed today, Knoxnews reports. Criminal Court Judge Mary Beth Leibowitz dismissed the case and also signed an order expunging all records of the case. Duncan, the son of U.S. Rep. John J. “Jimmy” Duncan Jr. and nephew of state Sen. Becky Duncan Massey, admitted improperly paying bonuses that were tied to a professional development program offered by County Technical Assistance Service. He pleaded guilty in July 2013 to the felony charge, and resigned from office.

Special Judge Appointed in Ouster Suit

Senior Judge Don R. Ash of Murfreesboro has been appointed to hear the ouster suit filed against Anderson County law director Jay Yeager by a group of 22 residents. Hearing dates will be discussed with attorneys in the case during an Aug. 19 telephone conference, officials said. Oak Ridge Today has more.

Frost Brown Todd Launches Electronic Payment Consulting Firm

Three payments industry veterans have launched BlackLine Payments Advisors, a new Nashville-based consulting firm for electronic payments and processing companies, the Nashville Business Journal reports. BlackLine, an affiliate of the Frost Brown Todd law firm, will span the gamut of the growing electronic payments space, says President Howard Herndon. The idea, Herndon said, is to go beyond mere legal counsel for companies providing electronic payments and processing services (from retailers to banks to e-commerce companies).

Claiborne County Bar Honors Former Chancellor

The Claiborne County Bar Association presented Cheryl White with a plaque honoring her late husband, Chancellor Billy Joe White, for his distinguished service as judge for the 8th judicial district from 1977-2012. The plaque will be permanently displayed in the Claiborne County Courthouse, the Claiborne Progress reports.

Commission Accepting Chancery Court Applications

The Governor’s Commission for Judicial Appointments is accepting applications for the chancellor vacancy in the 30th Judicial District Chancery Court in Shelby County. The vacancy has been created by the appointment of Chancellor Kenny Armstrong to the Tennessee Court of Appeals, effective Sept. 1. Applicants must complete the designated application and submit it to the Administrative Office of the Courts by 3 p.m. on Aug. 25.

Haslam Appoints Task Force on Sentencing and Recidivism

Gov. Bill Haslam today announced the formation of the Governor’s Task Force on Sentencing and Recidivism as part of the administration’s overall effort to reduce crime and improve public safety, the Chattanoogan reports. “We have put a strong emphasis on addressing some of our state’s toughest safety challenges head on, and the Public Safety Subcabinet is doing great work,” Gov. Haslam said. “This task force is a next step in making sure we have a comprehensive approach to public safety in Tennessee."

Upcoming

Governor to Swear In New Appellate Judge in Kingsport

Gov. Bill Haslam on Wednesday will give the oath of office to Judge Robert H. Montgomery Jr., who was appointed to the Court of Criminal Appeals Eastern Section last August. Montgomery, currently the Criminal Court Judge in Sullivan County, will replace Judge Joseph M. Tipton, who is retiring. The Investiture Ceremony will be held at 9:30 a.m. Wednesday at the Kingsport Renaissance Center Theater, 1200 East Center Street in Kingsport. A reception will follow. Call (423) 279-2732 for more information.

UT Law Hosts Admissions Workshop Sept. 3

The University of Tennessee College of Law will host a Law School Admission Workshop and Recruitment Fair on Sept. 3 for potential applicants. The workshop is free and no pre-registration is necessary. “Anyone considering law as a career who wants to know more about the law school admissions process should attend,” said Karen R. Britton, director of admissions and financial aid at the Bettye B. Lewis Career Center in the College of Law.

Member Benefits

UPS Puts the Power of Logistics to Work for You

UPS is pleased to help TBA members save time and money through special services and shipping discounts. UPS puts the power of logistics to work for you every day by providing speed, outstanding reliability and technology tools so you can focus on your business -- not on your shipping. Learn more here.

BPR Actions

Hawkins County Lawyer Temporarily Suspended

John Stephen Anderson of Rogersville was temporarily suspended from the practice of law for failing to respond to the Board of Professional Responsibility concerning a complaint of misconduct. View the BPR notice.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.